R v Nelson (Patrick Alan)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 24 October 2001 |
| Neutral Citation | [2001] EWCA Crim 2264 |
| Docket Number | No: 200002495/W5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 October 2001 |
[2001] EWCA Crim 2264
The Vice President
(Lord Justice Rose)
Mr Justice Davis and
Sir Richard Tucker
No: 200002495/W5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MISS I DAKYNS appeared on behalf of the APPELLANT
DR THOMAS appeared as an Amicus
On 23rd July 1999 at Nottingham Crown Court, this appellant pleaded guilty to indecent assault and, on 10th August 1999, he was sentenced by His Honour Judge Mayor QC, to 5 years' imprisonment with an extended period of licence of 5 years, pursuant to section 58 of the Crime and Disorder Act 1998, which is now section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. He was also required to register indefinitely under the Sex Offenders Act 1997.
With the leave of the Full Court, differently constituted, he appeals solely against the extended period of licence. When, on 13th March 2001, his appeal came before another division of this Court, over which the Lord Chief Justice presided, the Court, having heard submissions on the appellant's behalf from Miss Dakyns and by Dr David Thomas as amicus, adjourned the hearing of the appeal in order that the advice of the Sentencing Advisory Panel could be obtained, with a view to this Court issuing guidelines in relation to extended sentences. That advice has now been obtained and will no doubt be published. The Court is very grateful for that advice which, as will appear, the Court, for the most part, accepts. We are also grateful for the further written submissions, for the purpose of today's hearing from Dr Thomas, commenting on the advice and for the further oral submissions made to us, on the appellant's behalf, by Miss Dakyns.
There is no doubt that the Sentencing Advisory Panel are correct in saying that the complexity of the legislative provisions has inhibited courts from using their additional sentencing powers in relation to violent and sexual offences appropriately. This judgment is intended therefore to give guidance in the use of those powers.
The statutory provisions
We start with a summary of the terms and effect of the statutory provisions. By virtue of section 80(2) (a) of the Powers of Criminal Courts (Sentencing) Act 2000, formerly section 2(2) (a) of the Criminal Justice Act 1991, a custodial sentence must normally be commensurate with the seriousness of the offence. But section 80(2) (b) of the 2000 Act, corresponding to section 2(2) (b) of the 1991 Act, permits the court, when dealing with a violent or sexual offence, to impose a longer than commensurate sentence if this is necessary "to protect the public from serious harm from the offender". These words are defined by section 161(4) of the 2000 Act as "protecting members of the public from death or serious personal injury whether physical or psychological." The terms "violent offence" and "sexual offence" are defined by section 161 subsections (2) and (3) of the 2000 Act.
The original version of section 44 of the 1991 Act enabled the court to require an offender convicted of a sexual offence to remain on licence until the end of the sentence. Section 44 was replaced by section 85 of the 2000 Act, which makes an extended period of licence available for violent as well as sexual offences. Extended sentences under section 85 may be used when the normal period for which the offender would be on licence would not be adequate for the purpose of preventing the commission of further offences and securing rehabilitation (see section 85(1) (b)). It is to be noted that this provision makes no reference to "serious harm to the public".
By virtue of section 85(2), an extended sentence has two components, the custodial term, which is the sentence the court would otherwise have imposed, and the extension period of licence beginning when the offender's normal period of licence expires, or when he is released from custody if he would not otherwise be on licence.
If the offender has been convicted of a violent offence, the court may not pass an extended sentence unless the custodial term is for 4 years or more. This means that the power will rarely be exercisable in relation to offences of inflicting grievous bodily harm and assault occasioning actual bodily harm, for which the maximum sentence is 5 years. Also, the extension period, in relation to a violent offence, must not be for more than 5 years. In relation to a sexual offence, the custodial term may be of any length but the extension period must not be longer than 10 years. In relation to violent and sexual offences, the combined length of the custodial term and the extension period must not exceed the statutory maximum sentence for the offence (see section 85(3), (4) and (5)).
An adult magistrates' court has the power to pass an extended sentence for a sexual, though not for a violent, offence but, as the total sentence passed by magistrates cannot exceed 6 months, magistrates who think the normal period of licence would be inadequate should, in our view, commit to the Crown Court for sentence. It is possible that a youth court, which has power to pass a detention and training order for up to 24 months, may have power to pass an extended sentence on a sexual offender of, say, 24 months, with a custodial term of 6 months and an extension period of 18 months. But the legislation is obscure, in that an offender sentenced to a detention and training order is released subject to section 103 of the 2000 Act and not on licence under section 44(3) of the Criminal Justice Act 1991. So this point may merit scrutiny on some future occasion.
The effect of an extended sentence
The effect of an extended sentence has to be understood in the context of the normal provisions for early release, which apply to an offender serving either a commensurate or a longer than commensurate sentence. Short-term prisoners (that is those serving less than 4 years) are released after serving half the sentence. Those sentenced to less than 12 months are then at risk for the remainder of the sentence and may be returned to custody under section 116 of the 2000 Act, (which was formerly section 40 of the Criminal Justice Act 1991), if they are convicted of an offence committed during the 'at risk' period. Those sentenced to at least 12 months but less than 4 years are on licence, subject to supervision and executive recall in the case of breach, until three-quarters of the sentence has expired; and they are 'at risk' for the whole of the remaining term of the sentence: so they may be returned to custody, under section 116, if they are convicted of an offence committed during the licence and 'at risk' period.
Long-term prisoners, that is those sentenced to 4 years or more, are released after serving at least half and not more than two-thirds of that sentence. They are then on licence, subject to supervision and executive recall in the case of breach, until the end of the third quarter of the sentence and they are at risk for the whole of the remaining term of the sentence. They may be returned to custody under section 116, if they are convicted of an offence committed during the licence and 'at risk' period. There are useful examples of how these principles apply in practice set out in paragraph 10 of the Sentencing Advisory Panel's advice.
It is to be noted that an offender sentenced to an extended sentence may be recalled to custody at any time during the licence period and the extension period, without the intervention of the court, if the terms of the licence are breached. Once an offender is recalled, his case will be reviewed annually by the Parole Board. Unless subsequently released at the direction of the Parole Board, the offender will then remain in custody until the end of the extension period.
The sentencing process
In the light of these provisions, when dealing with a violent or sexual offence, the court in passing sentence should, in our judgment, consider the matter in three stages. The first stage is to decide on the sentence which would be commensurate. The second stage is to consider whether a longer period in custody is needed to protect the public from serious harm from the offender. If so, a longer than commensurate custodial sentence will be called for. The third stage, in relation to a sexual offence or a violent offence for which the appropriate custodial sentence is 4 years or longer, is to consider whether that sentence, whether commensurate or longer than commensurate, is adequate to prevent the commission by the offender of further offences and secure his rehabilitation. If not, an extended sentence is called for. It is not appropriate to reduce the custodial term because an extended licence period is being imposed (see Attorney-General's Reference No 40 of 2001 Court of Appeal (Criminal Division) 9th May 2001).
Where a sentencer is considering imposing an extended sentence, counsel should be warned of this, so that argument can be heard on the point. That course already applies when a sentencer is contemplating a...
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